I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

Utah’s Government Records Access and Management Act (“GRAMA”), available at https://le.utah.gov/xcode/Title63G/Chapter2/63G-2.html, states that “[e]very person has the right to inspect a public record free of charge, and the right to take a copy of a public record . . . .” Utah Code § 63G-2-201(1). Under GRAMA, “[a] record is public unless otherwise expressly provided by statute.” Id.§ 63G-2-201(2). Records classified as “private,” “controlled,” or “protected” are not public records. § 63G-2-201(3)(a).

GRAMA replaced the “Information Practices Act” and “Public and Private Writings Act” that previously governed access to government records in Utah. In enacting GRAMA, the Legislature expressly “recognize[d] two constitutional rights: (a) the public’s right of access to information concerning the conduct of the public’s business; and (b) the right of privacy in relation to personal data gathered by governmental entities.”§ 63G-2-102(1). The Legislature also “recognize[d] a public policy interest in allowing a government to restrict access to certain records . . . for the public good.” § 63G-2-102(2). Thus, the Legislature’s intent in enacting GRAMA was to:

(a) promote the public’s right of easy and reasonable access to unrestricted public records; (b) specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access; (c) prevent abuse of confidentiality by government entities by permitting confidential treatment of records only as provided in this chapter; (d) provide guidelines for both disclosure and restrictions on access to government records, which are based on the equitable weighing of the pertinent interests and which are consistent with nationwide standards of information practices; (e) favor public access when, in the application of this act, countervailing interests are of equal weight; and (f) establish fair and reasonable records management practices.

In a leading pre-GRAMA decision, the Utah Supreme Court stated that “it is the policy of this state that public records be kept open for public inspection in order to prevent secrecy in public affairs.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984). Consequently, “[t]he presumption . . . has always been [in favor of] public access, subject only to specific statutory restrictions, personal privacy rights, and countervailing public policy,” and any agency seeking to withhold information from the public bears the burden to justify its actions. Id. More recently, the Utah Supreme Court held that courts should apply the Legislature’s “clear and preeminent intent” to favor public disclosure even if “countervailing interests are of equal weight.” Deseret News Publ’g, 2008 UT 26, ¶ 24 n.3. A Utah federal district court also “has acknowledged and followed the well-recognized axiom that a common law right exists to inspect and copy judicial records.” Huntsman-Christensen Corp. v. Entrada Indus., Inc., 639 F. Supp. 733, 735 (D. Utah 1986) (internal quotations omitted).

Unlike access statutes in other jurisdictions, GRAMA applies to the state’s judicial branch, including its “courts, the Judicial Council, Office of the Court Administrator and similar administrative units in the judicial branch.” Utah Code § 63G-2-103(11)(a)(iii). The judiciary is not, however, subject to GRAMA’s appeals provisions. See § 63G-2-702(2)(a). Judicial records also may be subject to other statutes, regulations, judicial rules, or court orders. See, e.g., Utah Code Jud. Admin. 4-201 to R4-206.

B. Overcoming a presumption of openness

Rule 4-202.04 of the Utah Rules of Judicial Administration states:

In deciding whether to allow access to a court record or whether to classify a court record as private, protected or sealed, the court may consider any relevant factor, interest or policy presented by the parties, including but not limited to the interests described in Rule 4-202. In ruling on a motion under this rule the judge shall:

(A) make findings and conclusions about specific records;

(B) identify and balance the interests favoring opening and closing the record; and

(C) if the record is ordered closed, determine there are no reasonable alternatives to closure sufficient to protect the interests favoring closure.

C. Procedural prerequisites to closure

A party moving to prevent disclosure of records in Utah must file and serve a motion seeking closure on any members of the press who have requested notice in the case. Utah Code Jud. Admin. 4-202.04(2)(D). The district court need not conduct a hearing on closure unless the motion is contested or the press requested notice of such closure motions in the case. Id.

Five steps are required to close a hearing, including preliminary and competency hearings in criminal matters:

(i) a closure hearing must be held, and that hearing must be open to the greatest extent possible; (ii) if allegedly prejudicial information must be disclosed during the hearing on the merits, the court may close that hearing only after first attempting unsuccessfully to procure a voluntary nondisclosure agreement among the parties; (iii) the court may close only that portion of the hearing on the merits as is necessary to protect any countervailing interests, such as the accused’s fair trial right; (iv) if closure is deemed necessary, the transcript of any closed proceeding should be released as soon as it is possible to do so without prejudice to the interests that justified closure; (v) the order of closure resulting from the closure hearing must be supported by written findings and conclusions.

II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The media or other non-parties may challenge a closure order in two ways:

First, . . . the nonparty could move to intervene as a party in the case and would be entitled to challenge the classification of court records through direct appeal of the district court’s order.. . .

Second, as a nonparty, the [media] could seek a writ of mandamus to challenge the classification of the record . . . [because] only a party to an action can challenge the classification of a record on appeal, while a nonparty cannot.

B. Procedure for requesting access in criminal cases

In both criminal and civil cases, Rule 4-202.03 of the Utah Rules of Judicial Administration provides that “any person may access a public record” and includes an extensive list of individuals who may access private, protected, juvenile, or other court records. Utah R. Judicial Admin Rule 4-202.03. Requests for access to records in a case are governed by Rule 4-202.04, which states in pertinent part:

(1) A request to access a public court record shall be presented in writing to the clerk of the court unless the clerk waives the requirement. A request to access a non-public court record to which a person is authorized access shall be presented in writing to the clerk of the court. A written request shall contain the requester’s name, mailing address, daytime telephone number and a description of the record requested. If the record is a non-public record, the person making the request shall present identification.

(2) (A) If a written request to access a court record is denied by the clerk of court, the person making the request may file a motion to access the record.

(B) A person not authorized to access a non-public court record may file a motion to access the record. If the court allows access, the court may impose any reasonable conditions to protect the interests favoring closure.

Utah R. Judicial Admin Rule 4-202.04(1)-(2).

Once a trial court “determine[s] that the interests weigh[] in favor of unsealing [a record],” the court is “not required to determine that there are no reasonable alternatives to sealing sufficient to protect the interests favoring [sealing].” State v. Allgier, 2011 UT 47, ¶ 18, 258 P.3d 589 (internal quotations omitted) (last alteration in original).

C. Procedure for requesting access in civil matters

As in criminal cases, Rule 4-202.03 of the Utah Rules of Judicial Administration provides that “any person may access a public record” and includes an extensive list of individuals that may access private, protected, juvenile, or other court records. Utah R. Judicial Admin Rule 4-202.03. Requests for access to records in a case are governed by Rule 4-202.04, which states in pertinent part:

(1) A request to access a public court record shall be presented in writing to the clerk of the court unless the clerk waives the requirement. A request to access a non-public court record to which a person is authorized access shall be presented in writing to the clerk of the court. A written request shall contain the requester’s name, mailing address, daytime telephone number and a description of the record requested. If the record is a non-public record, the person making the request shall present identification.

(2) (A) If a written request to access a court record is denied by the clerk of court, the person making the request may file a motion to access the record.

(B) A person not authorized to access a non-public court record may file a motion to access the record. If the court allows access, the court may impose any reasonable conditions to protect the interests favoring closure.

III. Access to criminal proceedings

A. In general

The Utah Supreme Court has held that the public and press have a right of access to criminal proceedings under the First Amendment, the Utah Constitution, and common law. See State v. Archuleta, 857 P.2d 234 (Utah 1993); Kearns-Tribune Corp. v. Lewis,685 P.2d 515, 521 (Utah 1984); Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987); see also Soc’y of Prof’l Journalists v. Briggs, 675 F. Supp. 1308, 1310 (D. Utah 1987) (holding “there is a constitutional right of access to public documents.”).

The Utah Supreme Court has held that the rationale for public access to criminal proceedings includes “promot[ing] an informed discussion of government affairs, including those conducted in the courts,” and “ensur[ing] the fairness of the criminal trial.” Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518 (Utah 1984).

To close any criminal proceeding, five steps are required:

(i) a closure hearing must be held, and that hearing must be open to the greatest extent possible; (ii) if allegedly prejudicial information must be disclosed during the hearing on the merits, the court may close that hearing only after first attempting unsuccessfully to procure a voluntary nondisclosure agreement among the parties; (iii) the court may close only that portion of the hearing on the merits as is necessary to protect any countervailing interests, such as the accused’s fair trial right; (iv) if closure is deemed necessary, the transcript of any closed proceeding should be released as soon as it is possible to do so without prejudice to the interests that justified closure; (v) the order of closure resulting from the closure hearing must be supported by written findings and conclusions.

B. Pretrial proceedings

The Utah Supreme Court has held that the public and press have right of access to pretrial hearings under the First Amendment, the Utah Constitution, and common law. See Kearns-Tribune Corp. v. Lewis,685 P.2d 515, 521 (Utah 1984); Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987); State v. Archuleta, 857 P.2d 234, 239 (Utah 1993).“In addition to kindling public misperception and eroding public confidence, closure of significant pretrial proceedings perpetuates general ignoranceand cuts off public knowledge necessary to a full understanding of the criminal justice system.” Kearns-Tribune, 685 P.2d at 521 (internal quotations omitted).

The public’s right of access may be overcome if a trial court finds that disclosure of records containing sensitive or inflammatory information that are not necessarily accurate or admissible would jeopardize the defendant’s chance of receiving a fair trial. Archuleta, 857 P.2d at 239.

E. Appellate proceedings

IV. Access to criminal court records

A. In general

Pursuant to the test set forth by the U.S. Supreme Court in Press-Enterprise Company v. Superior Court of California, 478 U.S. 1, 9 (1986), the Utah Supreme Court requires that “a court first determine whether a qualified First Amendment right of public access exists for the particular proceeding [or documents related thereto].” State v. Archuleta, 857 P.2d 234, 237 (Utah 1993) (internal quotations omitted). “A qualified, or presumptive, right ofaccess exists only if (1) there has been a tradition of accessibility to the information desired, and (2) public access would play a significant positive role in the functioning of the process in question.” Id. However, “[e]ven if a qualified right of access to a criminal proceeding or judicial records does exist, that right is not absolute.” Id. “Instead, it must be weighed against other considerations, including the accused’s Sixth Amendment right to a fair trial.” Id.

Consistent with these principles, Rule 4-202.04 of the Utah Rules of Judicial Administration states:

In deciding whether to allow access to a court record or whether to classify a court record as private, protected or sealed, the court may consider any relevant factor, interest or policy presented by the parties, including but not limited to the interests described in Rule 4-202. In ruling on a motion under this rule the judge shall:

(A) make findings and conclusions about specific records;

(B) identify and balance the interests favoring opening and closing the record; and

(C) if the record is ordered closed, determine there are no reasonable alternatives to closure sufficient to protect the interests favoring closure.

Utah R. Judicial Admin Rule 4-202.04(3); see also Tillotson v. Van Nederveen Meerkerk, 2015 UT App 142, ¶ 6,353 P.3d 165 (“‘[C]ourt records are public unless otherwise classified by this rule.’” (quoting Utah Code Jud. Admin. 4-202.02(1)). However, the Utah Supreme Court also has noted that the public’s “right to know” is not absolute and is subject to an “implied rule of reason.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984). An agency seeking to withhold records bears the burden to overcome the strong presumption that government records are open to inspection. Id. at 1361-62.

B. Arrest records

Arrest warrants after issuance are public records, but a court may restrict access before service. Utah Code § 63G-2-301(3)(m). Search warrants after execution are public records, but a court may restrict access to such warrants before trial. Id. § 63G-2-301(3)(n). Booking photographs, which are not specifically exempted under GRAMA, are presumed to be public records. See KSL-TV v. Juab Cnty. Sheriff’s Office, No. 98-01 (Utah State Rec. Comm. Feb. 20, 1998). An “initial contact report” is a public record, Utah Code § 63G-2-103(14), and is defined as including written as well as recorded records,§ 63G-2-301(3)(g), such as a DUI report “prepared immediately following the incident and while the information is fresh in the reporting officer’s experience” and video recordings of traffic stops taken from dashboard cameras in the police vehicles. Utah Dep’t of Pub. Safety v. State Records Comm’n., No. 100904439, at 3 (Utah 3d Dist. June 17, 2010). And “audio and video recordings created by a body-worn camera,” Utah Code § 63G-2-302(2)(g), which is defined as “a video recording device that is carried by, or worn on the body of, a law enforcement officer and that is capable of recording the operations of the officer,” § 77-7a-103, are generally public records, except for those that “record sound or images inside a home or residence,” which are defined as private records unless they:

(i) depict the commission of an alleged crime;

(ii) record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon;

(iii) record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency;

(iv) contain an officer involved critical incident as defined in Section 76-2-408(1)(d); or

(v) have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording.

D. Warrants, wiretaps and related materials

The Utah Supreme Court has held that, pursuant to the test set forth by the U.S. Supreme Court in Press-Enterprise Company v. Superior Court of California, 478 U.S. 1, 9 (1986), “[p]retrial documents such as affidavits in support of search warrants, probable cause statements, and witness subpoenas are generally open for public inspection upon filing and return.” State v. Archuleta, 857 P.2d 234, 237-38 (Utah 1993). “[A]lthough the process of issuing search warrants has traditionally not been conducted in an open fashion, search warrant applications and receipts are routinely filed with the clerk of court withoutseal.” Id. at 238 (internal quotations omitted) (alteration in original).The Archuleta court specifically recognized the “general right to inspect and copy public records and documents under the common law” and that the “general practice in Utah and the common law both reveal that there is a tradition of accessibility to such documents.” Id. (internal quotations omitted).

The prosecutor or defense may impose reasonable limitations on the further dissemination of sensitive information otherwise subject to discovery to prevent improper use of the information or to protect victims and witnesses from harassment, abuse or undue invasion of privacy, including limitations on the further dissemination of videotaped interviews, photographs, or psychological or medical reports.

In addition, upon motion by a party, the court may permit the party to make a showing, “in whole or in part, in the form of a written statement to be inspected by the judge alone,” that relief concerning the permissible scope and dissemination of discovery be granted.

Utah R. Crim. P. 16(f).

“If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.”

F. Pretrial motions and records

The Utah Supreme Court has held that the public and press have right of access to pretrial hearings and related documents under the First Amendment, the Utah Constitution, and common law. See Kearns-Tribune Corp. v. Lewis,685 P.2d 515, 521 (Utah 1984); Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987); State v. Archuleta,857 P.2d 234, 239 (Utah 1993). “In addition to kindling public misperception and eroding public confidence, closure of significant pretrial proceedings perpetuates general ignoranceand cuts off public knowledge necessary to a full understanding of the criminal justice system.” Kearns-Tribune, 685 P.2d at 521 (internal quotations omitted). The Utah Supreme Court has “see[n]no reason to distinguish generally between access to a preliminary hearing and the documents filed in relation to that hearing” because “[a]ccess to pretrial documents furthers the same societal needs served by open trials and pretrial civil and criminal proceedings.” Archuleta, 857 P.2d at 238. The public’s right of access may be overcome if a trial court finds that disclosure of records containing sensitive or inflammatory information that is not necessarily accurate or admissible would jeopardize the defendant’s chance of receiving a fair trial. Archuleta, 857 P.2d at 239.

G. Trial records

The public’s presumptive right of access applies to criminal trial records. The public’s right in this context “serves many purposes, including ‘to educate the public about the workings of government,’ ‘to contribute to informed debate’, ‘to hold public officers and employees accountable,’ ‘to increase public confidence,’ and ‘to give notice of important claims, rights and obligations.’” Supernova Media, Inc. v. Shannon’s Rainbow, LLC, 2013 UT 7, ¶ 57, 297 P.3d 599 (quoting Utah Code Jud. Admin. 4-202(1)). Even if all parties agree to have their court records sealed, the “court has discretion to seal documents only if the public’s right of access is outweighed by competing interests,” including “protecting the integrity of ongoing investigations and proceedings, the privacy of those involved, the defendant’s right to a fair trial, public safety, and promot[ing] the rehabilitation of offenders, especially youthful offenders.” Id.¶ 58 (citations and internal quotations omitted) (alteration in original).

J. Other criminal court records issues

The Utah Supreme Court has held that a letter containing inculpatory evidence sent by an inmate housed in a cell adjoining the defendant’s cell to the trial court during the pendency of the defendant’s murder case was a “court record” to which there was a presumptive right of public access under Rule 4-202.02 of the Utah Code of Judicial Administration. State v. Allgier, 2011 UT 47, ¶¶ 4, 9-13, 258 P.3d 589. Under Rule 4-202.02, the court reasoned, “‘[c]ourt records are public unless otherwise classified by this rule,’” id. ¶ 10 (quoting Utah Code Jud. Admin. 4-202.02(1)), and the defined term “‘court records’ includes ‘case files,’ ‘books,’ ‘letters, documents, [or] papers’ that are ‘prepared, owned, received, or retained by a court of the administrative office of the courts.’” Id. ¶ 10 (quoting Utah Code Jud. Admin. 4–202.02(2)(E)) (alteration in original). Accordingly, because the trial court “both received the . . . Letter and retained it in [the defendant’s] case file,” that was the end of the analysis—it was a public record. Id. ¶12. It did not have to be “filed by a party or recognized intervener,” because there is no such requirement, either express or implied, in the rule, and the court “refuse[d] to infer substantive terms into the text.’” Id. (internal quotations omitted).

B. Dockets

The presumptive right of access to court records under federal, state, and common law applies equally to dockets in civil proceedings. See Lafferty v. Bigelow, No. 2:07-CV-322 (D. Utah Jan. 9, 2014) (granting media intervenors’ motion to unseal records and to disclose unrecorded docket entries); see also United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly established that court documents are covered by a common law right of access. Under that doctrine, judicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.”); Soc’y of Prof’l Journalists v. Briggs, 675 F. Supp. 1308, 1310 (D. Utah 1987) (“This court agrees and holds that there is a constitutional right of access to public documents.”); DUCivR 5-2(a) (“The records of the court are presumptively open to the public.”); State v. Archuleta, 857 P.2d 234 (Utah 1993) (First Amendment right of access to court records filed in connection with preliminary hearing); Utah Code § 63G-2-301(2)(f) (“judicial records” are presumptively public under GRAMA); Utah Code Jud. Admin. 4-202.02(1) (“Court records are public unless otherwise classified by this rule.”).

C. Discovery materials

The Utah Supreme Court has held that, once filed, pretrial discovery, including deposition transcripts, is “presumptively public.” Carter v. Utah Power & Light Co., 800 P.2d 1095, 1098-1100 (Utah 1990). But see Utah R. Civ. P. 26(f) (“Except as required by these rules or ordered by the court, a party shall not file with the court a disclosure, a request for discovery or a response to a request for discovery, but shall file only the certificate of service stating that the disclosure, request for discovery or response has been served on the other parties and the date of service.”). In addition, a Utah federal district court has ordered, under either the common law right of access or the constitutional right of access, public disclosure of a 24-second, pixelated video of a courtroom shooting submitted under seal as an exhibit to a summary judgment motion. Angilau v. United States, No. 2:16-00992-JED, 2017 WL 5905536, at *5-12 & n.14 (D. Utah Nov. 29, 2017). Pretrial discovery materials filed under seal pursuant to a protective order, however, “are not traditional public records which are publicly accessible.” Grundberg v. Upjohn Co., 140 F.R.D. 459, 466 (D. Utah 1991).

D. Pre-trial motions and records

The Utah Supreme Court has held that, once filed, pretrial discovery, including deposition transcripts, is “presumptively public.” Carter v. Utah Power & Light Co., 800 P.2d 1095, 1098-1100 (Utah 1990). But see Utah R. Civ. P. 26(f) (“Except as required by these rules or ordered by the court, a party shall not file with the court a disclosure, a request for discovery or a response to a request for discovery, but shall file only the certificate of service stating that the disclosure, request for discovery or response has been served on the other parties and the date of service.”). In addition, a Utah federal district court has ordered, under either the common law right of access or the constitutional right of access, public disclosure of a 24-second, pixelated video of a courtroom shooting submitted under seal as an exhibit to a summary judgment motion. Angilau v. United States, No. 2:16-00992-JED, 2017 WL 5905536, at *5-12 & n.14 (D. Utah Nov. 29, 2017). Pretrial discovery materials filed under seal pursuant to a protective order, however, “are not traditional public records which are publicly accessible.” Grundberg v. Upjohn Co., 140 F.R.D. 459, 466 (D. Utah 1991).

E. Trial records

The general presumption in favor of the right of public access presumably applies equally to trial records in civil cases. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly established that court documents are covered by a common law right of access. Under that doctrine, judicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.”); Soc’y of Prof’l Journalists v. Briggs, 675 F. Supp. 1308, 1310 (D. Utah 1987) (“This court agrees and holds that there is a constitutional right of access to public documents.”); State v. Archuleta, 857 P.2d 234 (Utah 1993) (First Amendment right of access to court records filed in connection with preliminary hearing); Utah Code § 63G-2-301(2)(f) (“judicial records” are presumptively public under GRAMA); Utah Code Jud. Admin. 4-202.02(1) (“Court records are public unless otherwise classified by this rule.”); see also Lafferty v. Bigelow, No. 2:07-CV-322 (D. Utah Jan. 9, 2014) (granting media intervenors’ motion to unseal records and to disclose unrecorded docket entries); DUCivR 5-2(a) (“The records of the court are presumptively open to the public.”).

F. Settlement records

G. Post-trial records

The general presumption in favor of the right of public access presumably applies equally to post-trial records in civil cases. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly established that court documents are covered by a common law right of access. Under that doctrine, judicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.”); Soc’y of Prof’l Journalists v. Briggs, 675 F. Supp. 1308, 1310 (D. Utah 1987) (“This court agrees and holds that there is a constitutional right of access to public documents.”); State v. Archuleta, 857 P.2d 234 (Utah 1993) (First Amendment right of access to court records filed in connection with preliminary hearing); Utah Code § 63G-2-301(2)(f) (“judicial records” are presumptively public under GRAMA); Utah Code Jud. Admin. 4-202.02(1) (“Court records are public unless otherwise classified by this rule.”); see also Lafferty v. Bigelow, No. 2:07-CV-322 (D. Utah Jan. 9, 2014) (granting media intervenors’ motion to unseal records and to disclose unrecorded docket entries); DUCivR 5-2(a) (“The records of the court are presumptively open to the public.”).

H. Appellate records

The general presumption in favor of the right of public access presumably applies equally to appellate records in civil cases. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly established that court documents are covered by a common law right of access. Under that doctrine, judicial documents are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.”); Utah Code § 63G-2-301(2)(f) (“judicial records” are presumptively public under GRAMA); Utah Code Jud. Admin. 4-202.02(1) (“Court records are public unless otherwise classified by this rule.”); DUCivR 5-2(a) (“The records of the court are presumptively open to the public.”).

I. Other civil court records issues

Except for the information required to be shown on the marriage license application form, any information given by a marriage license applicant to comply with the statute “shall be confidential information and shall not be released by any person, board, commission or other entity.” Utah Code § 30-1-37. However, statistical data based on the information provided by a marriage license applicant may be used, without identifying specific individuals, by the premarital counseling boards appointed by the county boards of commissioners. Id.

The court file in a divorce proceeding may be sealed by the court upon the motion of either party. The sealed file is available to the public only by court order, but the divorce decree itself is open to public inspection. See § 30-3-4(2). In 1995, United States Congresswoman Enid Greene Waldholtz successfully moved to seal the court file in her divorce action against Joseph Waldholtz. See Waldholtz v. Waldholtz, No. 954904704 (Utah 3d Dist. Jan. 16, 1996). The Congresswoman filed for divorce after she and her husband became embroiled in a controversy involving financial misconduct. Id. After several news organizations intervened, the court vacated its order sealing the records and held that the Waldholtzs’ divorce records were public. Id.

If spouses file a petition with the family court division seeking conciliation, the parties’ names and the contents of the conciliation petitions shall not be open to public inquiry, except that an attorney representing one of the spouses may determine from the clerk of the court if the other spouse has filed a conciliation petition. See § 30-3-16.6. The conciliation petition and all communications pertaining to the conciliation “shall be deemed to be made in official confidence within the meaning of Section 78B-1-137 and shall not be admissible or usable for any purpose in any divorce hearing or any other proceeding.” § 30-3-17.1.

C. Grand jury proceedings and records

D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

The Utah Court of Appeals has held that, “[u]nlike criminal trials, juvenile proceedings have not been historically open.” Kearns-Tribune Corp. v. Hornak, 917 P.2d 79, 86 (Utah Ct. App. 1996) (citing In re N.H.B., 769 P.2d 844, 849 (Utah Ct. App. 1989)). “[P]ublic access does not play as significant a role in the proper functioning of the juvenile justice system as it does in the adult system.” Id. “In contrast to adult criminal procedures, juvenile court proceedings do not involve criminal convictions, but are regarded as civil proceedings.” Id. “Because juvenile proceedings are not intended to punish, public access would not serve as a check against unjust conviction and the undeserved taint of criminality.” Id. “Indeed, confidentiality of juvenile proceedings is designed to avoid such taint” and “furthers society’s interest in rehabilitation of youthful offenders and their integration as law-abiding adults.” Id. Because “[p]ublic access to juvenile proceedings would detrimentally affect those purposes of the juvenile justice system,” the Utah Supreme Court has held “that the state has a compelling interest in maintaining the confidentiality of juvenile court proceedings which outweighs the media's right of access." Id.

“In delinquency cases[,] the court shall admit all persons who have a direct interest in the case and may admit persons requested by the parent or legal guardian to be present.” Id.§ 78A-6-114(1)(b). Furthermore, “[i]n delinquency cases in which the minor charged is 14 years of age or older, the court shall admit any person unless the hearing is closed by the court upon findings on the record for good cause” if the minor is charged with either “an offense which would be a felony if committed by an adult” or “an offense that would be a class A or B misdemeanor if committed by an adult, and the minor has been previously charged with an offense which would be a misdemeanor or felony if committed by an adult.” § 78A-6-114(c); accord, e.g., In re C.S., No. 1131061 (Utah 3d Dist. Juv. Ct. Mar. 22, 2017) (allowing access to minor’s certification hearing under Section 78A-6-114(c)); In re J.C., No. 1099751 (Utah 3d Dist. Juv. Ct. Mar. 21, 2017) (allowing access to juvenile hearings under Section 78A-6-114(c) and to public juvenile records enumerated in Utah Code Jud. Admin 4-202.02(2)(II)); In re E.A., 1136112 (Utah 3d Dist. Juv. Ct. Nov. 30, 2016) (all hearings, including minor’s certification hearing, were subject to presumptive right of access under Section 78A-6-114(c) and presumptive right of electronic media coverage under Utah Code Jud. Admin. 4-401.01).

B. Dependency

“In abuse, neglect, and dependency cases, the court shall admit any person to a hearing . . . unless the court makes a finding upon the record that the person’s presence at the hearing would: (A) be detrimental to the best interest of a child who is a party to the proceeding; (B) impair the fact-finding process; or (C) be otherwise contrary to the interests of justice.” Utah Code § 78A-6-114(1)(a)(i).

In general, juvenile court records are open to inspection by parents or guardians, other parties in the case, the attorneys, agencies to which custody of the child has been transferred, and the Division of Criminal Investigations and Technical Services. Utah Code § 78A-6-209(2). With the judge’s consent, the records may be inspected by the minor, by persons having a legitimate interest in the proceedings, and by persons conducting pertinent research studies. Id.§ 78A-6-209(3). If a juvenile fourteen years of age or older is charged “with an offense that would be a felony if committed by an adult, the court shall make available to any person upon request the petition, any adjudication or disposition orders, and the delinquency history summary of the minor charged unless the records are closed by the court upon findings on the record for good cause.” § 78A-6-209(4). “Probation officers’ records and reports of social and clinical studies are not open to inspection, except by consent of the court, given under the rules adopted by the board.” § 78A-6-209(5).

“After a detention hearing for a violent felony,” or certain weapon offenses, “the court shall direct that notice of its decision, including any disposition, order, or no contact orders, be provided to designated persons in the appropriate local law enforcement agency and district superintendent or the school or transferee school, if applicable, that the minor attends . . . for purposes of the minor’s supervision and student safety.” § 78A-6-113(4)(e)(ii).

The Utah Supreme Court has reversed a judgment of conviction, for violation of the defendant’s constitutional right to a public trial, where the trial court had closed the courtroom during the minor rape victim’s testimony “on the mere verbal assertion of the prosecutor that ‘[the witness] is extremely uptight, very nervous, very frightened . . . [a]nd I am afraid that she is going to be intimidated by them all [her family and the defendant’s family] probably,’” without “examin[ing] the witness to attempt to determine her capacity to testify in public, nor . . . mak[ing] any findings regarding the accuracy of the prosecutor’s assertions.” State v. Crowley, 766 P.2d 1069, 1071 (Utah 1988) (first and third alterations in original); see also Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 517, 524 (Utah 1984) (rejecting passing reference by prosecutor “to an interest ‘in the privacy and the well being’” of a minor sex-abuse victim in holding unconstitutional the trial court’s order closing preliminary hearing during her testimony without making any written findings supported by evidence); United States v. Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (“The [United States] Supreme Court has made clear that a simple blanket rule mandating closure in all sex offense cases involving young victims violates the Constitution.” (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982)).

D. Prohibitions on photographing or identifying juveniles

Utah’s rule governing electronic media coverage of court proceedings states, in relevant part, that “[n]otwithstanding an authorization to conduct electronic media coverage of a proceeding, and unless expressly authorized by the judge, there shall be no... electronic media coverage of the face of a person known to be a minor.” Utah Code Jud. Admin. 4-401.01(6)(B). Names and other identifying information of minors may also be redacted to protect the privacy interests of a minor. See Fox Television Stations v. Clary, No. 940700284 (Utah 2d Dist. Dec. 5, 1995) (redaction of names and other identifying information adequately protected privacy interests). In Fox Television, the court held that Sheriff Department reports containing information on sexual abuse of minor children were public records. Id. Because the county had released another report that identified the victims and the person making the initial sexual abuse report, the court determined that the county was estopped from asserting confidential protection for the requested reports. Id.

E. Minor testimony in non-juvenile courts

The Utah Supreme Court has reversed a judgment of conviction, for violation of the defendant’s constitutional right to a public trial, where the trial court had closed the courtroom during the minor rape victim’s testimony “on the mere verbal assertion of the prosecutor that ‘[the witness] is extremely uptight, very nervous, very frightened . . . [a]nd I am afraid that she is going to be intimidated by them all [her family and the defendant’s family] probably,’” without “examin[ing] the witness to attempt to determine her capacity to testify in public, nor . . . mak[ing] any findings regarding the accuracy of the prosecutor’s assertions.” State v. Crowley, 766 P.2d 1069, 1071 (Utah 1988) (first and third alterations in original); see also Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 517, 524 (Utah 1984) (rejecting passing reference by prosecutor “to an interest ‘in the privacy and the well being’” of a minor sex-abuse victim in holding unconstitutional the trial court’s order closing preliminary hearing during her testimony without making any written findings supported by evidence); United States v. Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (“The [United States] Supreme Court has made clear that a simple blanket rule mandating closure in all sex offense cases involving young victims violates the Constitution.” (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982)).

(i) a closure hearing must be held, and that hearing must be open to the greatest extent possible; (ii) if allegedly prejudicial information must be disclosed during the hearing on the merits, the court may close that hearing only after first attempting unsuccessfully to procure a voluntary nondisclosure agreement among the parties; (iii) the court may close only that portion of the hearing on the merits as is necessary to protect any countervailing interests, such as the accused’s fair trial right; (iv) if closure is deemed necessary, the transcript of any closed proceeding should be released as soon as it is possible to do so without prejudice to the interests that justified closure; (v) the order of closure resulting from the closure hearing must be supported by written findings and conclusions.

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

In general, “any prior restraint on expression bears a heavy presumption against its constitutional validity, and the government thus carries a heavy burden of showing justification for the imposition of such a restraint.” KUTV, Inc. v. Conder, 668 P.2d 513, 522 (Utah 1983) (reversing district court’s order barring news media from publishing words “Sugarhouse rapist” or disseminating any information on past convictions of criminal defendant during his trial) (internal quotations omitted).

C. Gag orders on participants

No Utah authority specifically addresses gag orders on participants in a judicial proceeding. However, “any prior restraint on expression bears a heavy presumption against its constitutional validity, and the government thus carries a heavy burden of showing justification for the imposition of such a restraint.” KUTV, Inc. v. Conder, 668 P.2d 513, 522 (Utah 1983) (internal quotations omitted).

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

Fair trial rights

Access to criminal proceedings “may be closed only upon a showing that access raises a realistic likelihood of prejudice to the defendant’s right to a fair trial.” Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987) (involving pretrial competency proceedings). The party seeking closure must show “that the matters in issue in the . . . proceeding, if disclosed, pose a substantial risk of endangering an accused’s fair trial rights.” Id. at 1179. The Utah Supreme Court has characterized this standard as a “significant” burden. Kearns-Tribune, 685 P.2d at 523.

Pretrial “publicity may lead jurors to form opinions about the defendant’s guilt, . . . but that does not necessarily disqualify the jurors.” State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988). Thus, “[t]o hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard,” so “[i]t is sufficient if the juror can lay aside his [or her] impression or opinion and render a verdict based on the evidence presented in court.” Id. at 1251; see also State v. Gardner, 789 P.2d 273, 277 (Utah 1989) (same). Despite the existence of many high profile criminal cases, Utah appellate courts “have never reversed a conviction on th[e] ground [of pre-trial publicity].” KUTV, Inc. v. Conder, 668 P.2d 513, 518 (Utah 1983); see also State v. Pierre, 572 P. 2d 1338, 1349 (Utah 1977) (“[T]his is not one of those exceptional cases where pretrial publicity exacerbated by State complicity encouraged the jurors to form such strong preconceived views of the defendant’s guilt as to be considered inherently prejudicial against him.”); State v. Andrews, 574 P.2d 709 (Utah 1977) (rejecting argument that publicity resulted in unfair trial); State v. Bishop, 753 P.2d 439, 458 (Utah 1988) (same).

The Utah Supreme Court acknowledged in State v. Allgier, 2011 UT 47, 258 P.3d 589 that “[t]here can be no doubt that pretrial . . . publicity that comes to the attention of prospective . . . jurors can deprive a criminal defendant of a fair trial,” but that the “right to a fair trial could be protected through the regular, time-honored processes for selecting jurors, even if the information in the [record] were added to the current media coverage.” Id. (internal quotations omitted) (first alteration and ellipses in original).

Utah courts employ a wide variety of less-restrictive alternatives to restricting access to protect a defendant’s constitutional rights, including but not limited to “use of an enlarged venire, thorough and searching voir dire, and a detailed jury questionnaire.” State v. Allgier, 2011 UT 47, ¶ 19, 258 P.3d 589 (internal quotations omitted); see also State v. James, 767 P. 2d 549, 557 (Utah 1989) (reversing order denying change of venue to another county due to extensive pre-trial publicity); State v. Harmon, 956 P.2d 262, 272-273 (Utah 1998) (“[O]ur judicial system greatly relies upon the jury’s integrity to uphold the jury oath, including its promise to follow all the judge’s instructions; our research indicates that virtually every jurisdiction, both state and federal, relies upon such instructions in curing errors during trial and reviewing errors on appeal.”).

The Utah Supreme Court and Court of Appeals have both noted that penetrating voir dire can effectively protect a criminal defendant’s fair trial right. See, e.g., Pierre, 572 P. 2d at 1350 (“[V]oir dire was neither simple nor perfunctory” but, rather, “a serious and comprehensive examination of the potential jurors to determine if any could remember or had contact, directly or indirectly, with the facts or publicity surrounding the case that would in any way suggest a likelihood of prejudice.”); Bishop, 753 P. 2d at 459 (effective voir dire eliminated alleged risk from prejudicial article published on day of jury selection); Lafferty, 749 P.2d at 1251 (“It is true that some of the jurors expressed an opinion that Lafferty was guilty; however, after the trial judge had questioned them carefully, each unequivocally stated that he or she would set aside preconceived notions, accord Lafferty a presumption of innocence, and decide the case on the evidence presented at trial.”); State v. Cayer, 814 P.2d 604, 610 (Utah Ct. App. 1991) (rejecting prejudice argument where exhaustive voir dire was conducted and defendant passed jury for cause); State v. Olsen, 869 P.2d 1004, 1008 (Utah Ct. App. 1994) (“The careful voir dire conducted by the judge, followed by Olsen’s passing the jury for cause, was sufficient to insure that Olsen received a fair trial.”); State v. Aase, 762 P. 2d 1113, 1116 (Utah 1988) (same).

Privacy

Victims’ names are presumed public, but access may be restricted if release would constitute a clearly unwarranted invasion of personal privacy. See Utah Code § 63G-2-103(14)(a)(ii); § 63G-2-302(2)(d). Confidential information given to a sexual assault counselor by a victim may be disclosed only in limited circumstances. Id. § 77-38-204. If none of the statutory exceptions apply, “the privilege afforded the confidential communications between [the victim] and the sexual assault counselor at the Center is absolute.” State v. Gomez, 2002 UT 120, ¶ 15, 63 P.3d 72.

The Utah Supreme Court has reversed a judgment of conviction, for violation of the defendant’s constitutional right to a public trial, where the trial court had closed the courtroom during the minor rape victim’s testimony “on the mere verbal assertion of the prosecutor that ‘[the witness] is extremely uptight, very nervous, very frightened . . . [a]nd I am afraid that she is going to be intimidated by them all [her family and the defendant’s family] probably,’” without “examin[ing] the witness to attempt to determine her capacity to testify in public, nor . . . mak[ing] any findings regarding the accuracy of the prosecutor’s assertions.” State v. Crowley, 766 P.2d 1069, 1071 (Utah 1988) (first and third alterations in original); see also Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 517, 524 (Utah 1984) (rejecting passing reference by prosecutor “to an interest ‘in the privacy and the well being’” of a minor sex-abuse victim in holding unconstitutional the trial court’s order closing preliminary hearing during her testimony without making any written findings supported by evidence); United States v. Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (“The [United States] Supreme Court has made clear that a simple blanket rule mandating closure in all sex offense cases involving young victims violates the Constitution.” (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982)).

Information regarding sex offender registration is generally public. See § 77-41-108. However, GRAMA classifies such information as private to the extent that the information is both required by certain registration provisions and expressly exempted from public disclosure.§ 63G-2-302(1)(o).

Records that “reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes” are protected from public disclosure. Utah Code § 63G-2-305(10)(a); see also Deseret News Publ’g, 2008 UT 26, ¶¶ 41-45 (investigation must be “a then ongoing investigation,” not a completed or future investigation, for this provision to apply); Carlisle v. Utah Cty. Sheriff’s Office, No. 16-49 (Utah State Records Committee Dec. 19, 2016) (concluding that “all records relating to an internal or administrative investigation of the named police officer related to allegations of witness tampering, retaliation against a witness, or obstruction of justice, are public records”). The same is true of enforcement, discipline, licensing, certification, or registration records that reasonably could be expected to disclose a confidential source’s identity, Utah Code § 63G-2-305(10)(d), or that reasonably could be expected to disclose confidential “investigative or audit techniques, procedures, policies, or orders . . . if disclosure would interfere with enforcement or audit efforts.” Id. § 63G-2-305(10(e). And the same is true of “records the disclosure of which would jeopardize the life or safety of an individual.” Id. § 63G-2-305(11). With few exceptions, expunged and sealed criminal records may not be divulged except under court order. Id. § 77-40-109.

B. Cameras and other technology in the courtroom

Effective November 11, 2015, “[t]here is a presumption that electronic media coverage by a news reporter shall be permitted in public proceedings where the predominant purpose of the electronic media coverage request is journalism or dissemination of news to the public.” 2015 Utah Court Order 0016 (amending Utah Code Jud. Admin. 4-401.01). “The judge may prohibit or restrict electronic media coverage in those cases only if the judge finds that the reasons for doing so are sufficiently compelling to outweigh the presumption.” Id.

The Utah Code of Judicial Administration sets forth a number of factors that a judge must consider when “determining whether the presumption of electronic media coverage has been overcome and whether such coverage should be prohibited or restricted beyond the limitations in this rule.” Utah Code Jud. Admin. 4-401.01(2)(B). Any restriction on electronic media coverage must be supported by particularized oral or written findings on the record. Id.at 4-401.01(2)(C).